Ziemba v. Lajoie et al

Filing 43

ORDER granting in part and denying in part 26 Motion to Dismiss. The request for declaratory relief, all federal claims against defendants Murphy, Lajoie, Faucher and Powers, and any federal claims based on negligence against defendants Quiros and Cahill are dismissed. The case will proceed on the remaining federal claims against defendants Quiros and Cahill and the state law claims, other than those based on negligence, against all defendants. Signed by Judge Stefan R. Underhill on 9/24/2012. Signed by Judge Stefan R. Underhill on 9/24/2012. (Martin, M.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

DUANE ZIEMBA,
Plaintiff,
v.
MICHAEL LAJOIE, et al.,
Defendants.

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No. 3:11cv845 (SRU)

RULING ON DEFENDANTS’ MOTION TO DISMISS [Doc. #26]
Plaintiff Duane Ziemba filed this action pro se bringing claims under 42 U.S.C. § 1983
(2000). He names as defendants Michael Lajoie, Angel Quiros, Brian K. Murphy, Stephen
Faucher, Lauren Powers and Jason Cahill. Ziemba alleges that the defendants moved two
violent inmates into his cell in retaliation for his lawsuits against Department of Correction
employees and failed to protect him from harm. The defendants have filed a motion to dismiss
the request for declaratory relief and all claims against defendants Lajoie, Murphy, Faucher and
Powers. For the reasons that follow, the defendants’ motion is granted in part.
I. Standard of Review
When considering a motion to dismiss, the court accepts as true all factual allegations in
the complaint and draws inferences from these allegations in the light most favorable to the
plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Flores v. Southern Peru Copper
Corp., 343 F.3d 140, 143 (2d Cir. 2003). The court considers not whether the plaintiff ultimately
will prevail, but whether he has stated a claim upon which relief may be granted so that he
should be entitled to offer evidence to support his claim. See York v. Association of Bar of City

of New York, 286 F.3d 122, 125 (2d Cir.), cert. denied, 537 U.S. 1089 (2002).
In reviewing the complaint in response to a motion to dismiss, the court applies “a
‘plausibility standard,’ which is guided by two working principles.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). First, the requirement that the court accept as true the allegations in the
complaint “‘is inapplicable to legal conclusions,’ and ‘[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.’” Harris v. Mills, 572
F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal, 556 U.S. at 678). Second, to survive a motion to
dismiss, the complaint must state a plausible claim for relief. Determining whether the
complaint states a plausible claim for relief is “‘a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.’” Id. (quoting Iqbal,556
U.S. at 679). Even under this standard, however, the court liberally construes a pro se
complaint. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Boykin v. KeyCorp,
521 F.3d 202, 213-14, 216 (2d Cir. 2008).
II.

Facts
In November 2009, Ziemba was confined at Northern Correctional Institution. At that

time, Ziemba was litigating three cases in federal court against correctional officials. Ziemba
has since been transferred to the MacDougall-Walker Correctional Center.
In October 2009, inmate Michael Giangreco was confined at the MacDougall-Walker
Correctional Center. He assaulted his cellmate with a piece of metal from his wheelchair and
informed staff that he had killed his cellmate. Following the incident, inmate Giangreco told
correctional staff that he intended to remain in a single cell by any means necessary including
murder. Following the incident, inmate Giangreco was transferred to Northern Correctional

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Institution.
On November 4, 2009, inmate Giangreco was assigned as Ziemba’s cellmate. That same
day, inmate Giangreco assaulted Ziemba and stated that he would murder Ziemba the first
chance he had. As a result of the assault, Ziemba suffered a cracked tooth, cuts in his mouth and
bruises on his face and head. Ziemba told unidentified staff members and defendant Cahill about
the assault and threat and asked that inmate Giangreco be moved. Defendant Cahill refused to
make any housing changes and told Ziemba they should work out their differences. Ziemba also
wrote to defendants Cahill and Quiros but received no response.
On November 5, 2009, inmate Giangreco assaulted Ziemba by choking him. No action
was taken and medical care was not provided. On November 6, 2009, inmate Giangreco was
moved to another cell. Later that day, defendant Cahill told Ziemba that, because he filed
lawsuits against correctional staff, he would “pay dearly” and that “we will just keep getting
inmates to do our dirty work for us.” Compl., ¶ 27. Defendant Cahill also told Ziemba that his
next cellmate would be worse. Ziemba wrote letters to defendants Murphy, Quiros and Cahill.
No action was taken in response to the letters.
On November 13, 2009, inmate Conte was assigned as Ziemba’s cellmate. Inmate Conte
suffered from brain damage, was know to be violent and had been ordered to be housed in a
single cell. Inmate Conte remained as Ziemba’s cellmate until November 17, 2009. During that
time, inmate Conte threatened Ziemba but did not harm him. Defendant Cahill refused to move
inmate Conte. On November 17, 2009, Ziemba expressed his concerns to defendant Quiros
while the warden was touring the housing unit. Defendant Quiros threatened Ziemba.

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III.

Discussion
Ziemba asserts five claims for relief. In the first claim, he seeks declaratory relief in the

form of “a declaration of his rights and remedies.” The second claim, is a federal claim against
all of the defendants for deliberate indifference to safety and failure to protect him from harm.
The third claim is a federal claim against defendants Lajoie, Quiros, Murphy, Faucher and
Powers for supervisory liability. The fourth claim is a retaliation claim against all of the
defendants. The fifth claim encompasses state law claims for violation through retaliatory acts
of his right to freely speak, write and publish his grievances; denial of medical care; assault and
battery; intentional and negligent infliction of emotional distress; and negligence.
The defendants have moved to dismiss the claim for declaratory relief against all
defendants and the second, third and fourth claims for relief against defendants Murphy, Lajoie,
Faucher and Powers. They also argue that any allegations of negligence contained in the second,
third and fourth claims are not cognizable under section 1983 and that, to the extent that it is
based on allegations of negligence, the fifth claim is barred as a matter of state law. Finally, the
defendants urge the court to decline to exercise supplemental jurisdiction over the state law
claims against defendants Murphy, Lajoie, Faucher and Powers.
A.

Declaratory Relief

Ziemba seeks a declaration of his rights and remedies. Declaratory relief is intended to
enable parties to adjudicate claims before either side suffers great damages. See In re
Combustible Equip. Assoc., 838 F.2d 35, 37 (2d Cir. 1988). Declaratory relief operates
prospectively; it is inappropriate for past acts because all damages already have accrued. See
National Union Fire Ins. Co. of Pittsbugh, Pa. v. International Wire Group, Inc., No. 02 Civ.

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10338, 2003 WL 21277114, at *5 (S.D.N.Y. June 2, 2003). The incidents giving rise to this
action occurred during a two-week period in late 2009 when Ziemba was incarcerated at a
different correctional facility. The alleged violation of Ziemba’s rights occurred over two years
ago and will be compensated by his requested damages should he prevail in this action.
Accordingly, declaratory relief is inappropriate. The defendants’ motion to dismiss is granted
with respect to the claim for declaratory relief.
B.

Supervisory Liability

Defendants Acting Commissioner Murphy, District Administrator Lajoie, Deputy
Warden Faucher and Deputy Warden Powers are all supervisory officials. For many years it was
well settled in this circuit that there were five ways to demonstrate the personal involvement of a
supervisory defendant: (1) the defendant directly participated in the alleged constitutional
violation, (2) after he was informed of the violation through a report or appeal, the supervisory
defendant failed to remedy the wrong, (3) the supervisory defendant created a policy or custom
pursuant to which the constitutional violation occurred or permitted such a policy or custom to
continue, (4) the defendant was grossly negligent in supervising the subordinates who committed
the wrongful acts, or (5) the defendant was deliberately indifferent to the plaintiff’s rights by
failing to act on information that unconstitutional acts were occurring. Colon v. Coughlin, 58
F.3d 865, 873 (2d Cir. 1995). In addition, the plaintiff must demonstrate an affirmative causal
link between the supervisory official’s failure to act and his injury. See Poe v. Leonard, 282
F.3d 123, 140 (2d Cir. 2002).
The decision in Ashcroft v. Iqbal, 556 U.S. 662, caused a number of courts to re-examine
this issue. In Iqbal, the Supreme Court rejected the argument that “a supervisor’s mere

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knowledge of his subordinate’s discriminatory purpose amounts to the supervisor's violating the
Constitution,” concluding that “each Government official, his or her title notwithstanding, is
only liable for his or her own misconduct.” 556 U.S. at 677.
Since Iqbal, some districts courts within this circuit have determined that not all five of
Colon’s categories of conduct that may give rise to supervisory liability remain viable. See, e.g.,
Bellamy v. Mount Vernon Hospital, No. 07 Civ. 1801(SAS), 2009 WL 1835939 at *6 (S.D.N.Y.
June 26, 2009) (“The Supreme Court’s decision in Iqbal v. Ashcroft abrogates several of the
categories of supervisory liability enumerated in Colon v. Coughlin. Iqbal’s active conduct
standard only imposes liability on a supervisor through section 1983 if that supervisor actively
had a hand in the alleged constitutional violation. Only the first and part of the third Colon
categories pass Iqbal’s muster.”); Bryant v. County of Monroe, No. 09-CV-6415-CJS, 2010 WL
4877799 at *3 (W.D.N.Y. Nov. 22, 2010) (“The Court . . . is persuaded by the analysis of . . .
Iqbal . . . in Bellamy . . . . ”). Other district courts restrict application of Iqbal to cases involving
discriminatory intent. See, e.g., Delgado v. Bezio, No. 09 Civ. 6899(LTS), 2011 WL 1842294 at
*9 (S.D.N.Y. May 9, 2011) (“‘It was with intent-based constitutional claims in mind, specifically
racial discrimination, that the Supreme Court rejected [in Iqbal] the argument that a supervisor’s
mere knowledge of his subordinate’s discriminatory purpose amounts to the supervisor’s
violating the Constitution.’. . . Thus, where the claim does not require a showing of
discriminatory intent, the Colon analysis should still apply, insofar as it is ‘consistent with the
particular constitutional provision alleged to have been violated.’” (internal citations omitted)).
The Second Circuit has not yet addressed this issue.
This court need not determine whether Iqbal applies in all cases or just those involving

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discriminatory intent because the allegations against defendants Murphy, Lajoie, Faucher and
Powers are insufficient to survive dismissal even under the Colon standard.
Ziemba alleges no facts regarding defendant Lajoie. The only factual allegation
regarding defendant Murphy is that Ziemba wrote him a letter after inmate Giangreco was placed
in Ziemba’s cell. The receipt of a complaint from an inmate, without more, does not establish
personal involvement of a supervisory official. See Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir.
1997) (two letters to commissioner, one assigned to subordinate for response and one seeking
status of request which was responded to by commissioner, do not demonstrate the requisite
personal involvement of commissioner); Marrero v. Kirkpatrick, 659 F. Supp. 2d 422, 427
(W.D.N.Y. 2009) (allegation that prisoner wrote to supervisory officials and failed to receive
satisfactory response was insufficient to demonstrate personal involvement).
Ziemba has attached to his complaint a hearing notice showing that inmate Giangreco
was violent and alleges that inmate Giangreco told defendants Faucher and Powers that he would
murder his next cellmate. Although this shows that some or all of these defendants knew that
inmate Giangreco was violent, Ziemba alleges no facts supporting his conclusion that any of
them ordered inmates Giangreco and Conte to be housed with Ziemba or was aware that the cell
assignments had been made. Thus, Ziemba has alleged no facts demonstrating the personal
involvement of any of the four defendants in his second, third and fourth claims for relief.
In opposition to the motion to dismiss, Ziemba argues that the complaint is replete with
factual allegations against these defendants. Ziemba is mistaken. What he considers facts
actually are conclusions and statements reciting the Colon categories of conduct. Neither is
sufficient to survive a motion to dismiss. See Harris, 572 F.3d at 72 (when reviewing a motion

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to dismiss, court need not accept as true legal conclusions or conclusory statements reciting
elements of cause of action).
Unlike the prison officials in the cases Ziemba cites in his memorandum, there are no
facts alleged showing that these defendants were aware that Ziemba was in a danger from inmate
Giangreco. For example, in one case, two inmates assaulted a third inmate. The supervisory
official knew that one of two inmates had been assaulted by gang members in retaliation for his
participation in the assault and that the gang was angry with the second inmate. The court
concluded that these facts were sufficient to establish supervisory liability after the second
inmate was assaulted by gang members. See Woods v. Lecureux, 110 F.3d 1215, 1223-24 (6th
Cir. 1997). In another case, the correctional official had spoken with the inmate about his safety
concerns and the inmate was attacked on three separate occasions without correctional staff
taking action. See Hayes v. New York City Dep’t of Corrections, 84 F.3d 614, 617, 621 (2d Cir.
1996). Here, there is no pattern of conduct against Ziemba by either inmate and only one
occasion of assault. Thus, these case do not support Ziemba’s claims.
Ziemba also argues that the supervisory defendants are liable because they failed to
create adequate policies to ensure that inmate Giangreco was not placed in his cell when they
should have known the likely result of requiring inmate Giangreco to have a cellmate. Ziemba
does not, however, allege any facts to suggest that an appropriate classification policy was not in
place. Equally likely is the possibility that the inmates were placed in Ziemba’s cell despite an
appropriate policy. To survive a motion to dismiss, Ziemba must “provide the grounds upon
which his claim rests through factual allegations sufficient ‘to raise a right to relief above the
speculation level.’” ATSI Communications, Inc, v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.

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2007) (quoting Twombly, 550 U.S. at 555). Without any supporting factual allegations,
Ziemba’s assumptions do not rise to the required level.
Ziemba has not alleged any facts demonstrating a plausible claim against defendants
Murphy, Lajoie, Faucher and Powers. Thus, the defendants’ motion to dismiss is granted with
respect to the allegations against those defendants in claims for relief two, three and four.
C.

Negligence Allegations in Claims for Relief Two and Four

The defendants argue that any allegations of negligence by any defendant in claims for
relief two and four are not cognizable under section 1983. Ziemba alleges in his federal claims
that all defendants were “personally negligent” in supervising and training subordinates. See
Doc. #1, ¶¶ 51d, 60e. Negligence on the part of a prison official will not establish a
constitutional violation. Daniels v. Williams, 474 U.S. 327, 332–33 (1986). Accordingly, the
defendants’ motion to dismiss is granted with respect to any federal law claims based on
negligence.
D.

State Law Claims

The defendants argue that, to the extent the fifth claim is based upon allegations of
negligence, it is barred under Conn. Gen. Stat. section 4-165, which provides state officers and
employees with personal immunity. That section provides:
No state officer or employee shall be personally liable for damage or injury, not
wanton, reckless or malicious, caused in the discharge of his or her duties or within
the scope of his or her employment. Any person having a complaint for such damage
or injury shall present it as a claim against the state under the provisions of this
chapter.
Conn. Gen. Stat. § 4-165. Thus, "state employees may not be held personally liable for their
negligent actions performed within the scope of their employment." Hamilton v. Lajoie, 660 F.

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Supp. 2d 261, 265 (D. Conn. 2009) (quoting Miller v. Egan, 265 Conn. 301, 319 (2003)).
Accordingly, the defendants' motion to dismiss is granted with respect to any state law claims
based on negligence.
Finally, the defendants ask the court to decline to exercise supplemental jurisdiction over
the state law claims against defendants Murphy, Lajoie, Faucher and Powers. The defendants do
not address the merits of any remaining state law claims.
Where all federal claims have been dismissed, the district court may decline to exercise
supplemental jurisdiction over pendent state law claims. See 28 U.S.C. § 1367(c)(3) (district
court may decline to exercise supplemental jurisdiction over state law claims where all federal
claims have been dismissed); see also Giordano v. City of New York, 274 F.3d 740, 754 (2d Cir.
2001) (collecting cases supporting proposition that district court should decline to exercise
supplemental jurisdiction where all federal claims have been dismissed).
Here, although the federal claims against defendants Murphy, Lajoie, Faucher and
Powers have been dismissed, the federal claims against defendants Quiros and Cahill remain
pending. Ziemba’s state and federal claims are based on the same operative facts, the
assignment of inmates Giangreco and Conte as his cellmates. Thus, in the interest of judicial
economy, the state and federal claims should be tried together. See United Mine Workers v.
Gibbs, 383 U.S. 715, 726-27 (1966) (federal court should retain jurisdiction of state law claims
under theories of judicial economy and fairness to litigants where state and federal claims are
closely linked and state claims do not substantially predominate); Advance Relocation & Storage
Co., Inc. v. Local 814, Int’l Bhd. of Teamsters, AFL-CIO, No. CIV.A. 03CV4475DGTJM, 2005
WL 665119, at *11 (E.D.N.Y. Mar. 22, 2005) (retaining supplemental jurisdiction over state

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claims against one defendant against whom federal RICO claims had been dismissed because
state claims and RICO claims derived from same facts and RICO claims remained pending
against other defendants). The defendants’ motion to dismiss is denied with respect to the state
law claims.
IV.

Conclusion
The defendants' motion to dismiss [Doc. #26] is GRANTED in part. The request for

declaratory relief, all federal claims against defendants Murphy, Lajoie, Faucher and Powers,
and any federal claims based on negligence against defendants Quiros and Cahill are dismissed.
The case will proceed on the remaining federal claims against defendants Quiros and Cahill and
the state law claims, other than those based on negligence, against all defendants.
It is so ordered.
Dated at Bridgeport, Connecticut this 24th day of September 2012.

/s/ Stefan R. Underhill
Stefan R. Underhill
United States District Judge

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